Roberts v. King
| Decision Date | 19 September 1960 |
| Docket Number | Nos. 38374,38375,No. 1,s. 38374,1 |
| Citation | 116 S.E.2d 885,102 Ga.App. 518 |
| Parties | Ruby D. ROBERTS v. J. W. KING et al. (two cases) |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where a person rides in an automobile with a driver knowing that the driver intends to engage in a 'drag' race on a public highway contrary to the laws of Georgia and is killed in an 'all-out' race of which he was ignorant, he assumed whatever risks might develop from such wilful and wanton misconduct, and an action for his death is barred by his assumption of the risk for the reason that the law will not seek to divide wilful and wanton misconduct into degrees.
Mrs. Ruby Dale Roberts and Albert W. Roberts, the parents of Norris B. Roberts, a minor, brought separate actions in the Superior Court of Newton County to recover damages for the tortious homicide of the minor. The action filed by Albert W. Roberts sought recovery for the loss of use of said minor's services plus funeral expenses incurred in the interment of the body of said child. The action filed by Mrs. Ruby Dale Roberts sought damages for the full value of the minor's life. The actions were in two counts. Count 1 charged the defendants with gross negligence and count 2 charged them with wilful and wanton misconduct. The defendants in each case were James Wayne King, Edward L. King, William C. Bouchillon, Jr., and Johnny Turner. The defendant Edward L. King, father of James Wayne King, was made a party defendant in these actions under the family purpose automobile doctrine. The defendant Johnny Turner was made a party defendant in these actions by virtue of the fact that he was the owner and occupant of a vehicle driven by defendant William C. Bouchillon, Jr. The defendants James Wayne King and William C. Bouchillon, Jr., were charged with the unlawful operation of the two automobiles which they were driving on a two-lane public highway in the nighttime while engaged in a race between the two automobiles. The cases were consolidated and tried together. At the conclusion of all the evidence the plaintiffs moved for a directed verdict in their favor against James Wayne King, William C. Bouchillon, Jr., and Johnny Turner on count 2 of their petitions, on the issue of liability. No such motion was made with respect to defendant Edward L. King but the plaintiffs moved the court that it submit to the jury whether Edward L. King was liable on the theory of family purpose doctrine, and the motion for directed verdicts as aforesaid was predicated on the contention that the uncontradicted evidence adduced on the trial showed as a matter of law that James Wayne King, William C. Bouchillon, Jr., and Johnny Turner were guilty of each and every one of the specifications of wilful and wanton misconduct charged against them in the petitions. The court directed verdicts for all the defendants. The court overruled the plaintiff's motions for judgments notwithstanding the verdicts and their motions for new trials. The plaintiffs except to the direction of the verdicts for the defendants, to the overruling of their motions for judgments notwithstanding the verdicts and to the overruling of their motions for new trials.
Greene, Neely, Buckley & DeRieux, Burt DeRieux, John D. Jones, Sanders McD. Marshall, Atlanta, for plaintiff in error.
Sam F. Lowe, Jr., Atlanta, Clarence Vaughn, Jr., Covington, Smith, Field, Doremus & Ringel, Atlanta, W. Donald Ballard, King, Ballard & King, Covington, for defendants in error.
1. The plaintiffs in these cases contend that the evidence did not demand a verdict for the defendants for the reason that the contributory negligence of the deceased son in participating in the race is not a bar to their recovery because the drivers of the racing automobiles were guilty of wilful and wanton misconduct, and for the reason that the deceased did not assume the risks of an 'all-out' race because he thought that the race would be only a 'drag' race. It is true that in certain types of cases the contributory negligence of a person, injury to whom forms the basis of the right of action, is not a bar to an action for wilful and wanton misconduct. Central R. & Bkg. Co. v. Denson, 84 Ga. 774, 11 S.E. 1039; Young v. South Georgia Ry. Co., 34 Ga.App. 537, 130 S.E. 542; Fairburn & Atlanta ry. & Electric Co. v. Latham, 26 Ga.App. 698(1), 107 S.E. 88. These cases are distinguishable from the instant case in that in them there was no conscious choice of the injured parties to assume the risk of wanton misconduct which the injured party knew was contemplated by the party inflicting the injury. Where one assumes the risk of wilful and wanton misconduct and is injured or killed thereby a cause of action for such injury or death is barred. Code § 105-1803. The true defense in these cases is the doctrine of assumption of the risks. This doctrine has sometimes been mistakenly referred to as contributory negligence. In the cases in which this has been done the term contributory negligence truly means assumption of risk or consent to the injury for the reason that in such cases the so-called contributory negligence would not necessarily have barred the action where wilful and wanton misconduct was involved, whereas the assumption of risk doctrine would have. Georgia R. & Bkg. Co. v. Greer, 7 Ga.App. 292(4), 66 S.E. 961, 964. In that case the court stated: 'Even where the defendant's act is such by reason of its wantonness or otherwise as to cut off the...
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McEachern v. Muldovan
...of the risk evolved, after first being viewed as a special type of contributory negligence. See generally Roberts v. King, 102 Ga.App. 518, 521(1), 116 S.E.2d 885 (1960); 57B AmJur2d, Negligence, §§ 1377-1378. Georgia still follows the traditional view that assumption of risk is a separate ......
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